Complexity of litigation: a way to decide whether it’s increasing

A recent study found several law department respondents asserting that litigation is becoming more complex. I poked around at this common view in a previous post (May 15, 2005) but thought again about it again, and here will go beyond that post’s indicators.

If someone would take 20 cases in two or three areas of law (discrimination, breach of contract, product liability, for example) each of 20 major companies resolved in 1994 – 400 cases closed – and would match them against a similar set from 2004, how might you measure if there were an increase in complexity?

Compare the number of months the cases lasted. Count the number of co-defendants and cross claims and counter claims. Count the number of statutes cited and the number of cases cited in briefs. Count the number of hearings per case. These measures, and others I am sure, might combine into a complexity index, if they were given different weights. (See my posts on April 3 regarding an Energy index and Aug. 14, 2005 on a trademark index.)

Ideally, if you had this comparative database and outside counsel cost data, regression analysis would additionally tell which factors correlate most closely to spending on the case. (See my post on August 14, 2005 about regression analysis and litigation outcomes.) The database would also help quantify just what it is exactly that makes people say, offhandedly, “cases are becoming more complex” and would test the common wisdom.

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